112 Ga. App. 344 | Ga. Ct. App. | 1965
Roy R. Webb, Theoda Standridge, Edna Bryant, Hester Hendrix, Ernest E. Webb and J. B. Webb brought an action against Ernest Lee McDaniel, alleging that they were the brothers and sister of Mrs. Lula Bell Webb McDaniel, deceased; that on September 24, 1959, said McDaniel did, with malice aforethought, kill his wife, the said Lula Bell Webb McDaniel, and that, under the law, he was not entitled to inherit any of her property and prayed, “that title to all of the property belonging to Mrs. Lula Bell Webb McDaniel at the time of her death be decreed to be in” the plaintiff. A settlement agreement was entered into between the parties whereby moneys on deposit in a bank and certain real estate and personal property of the deceased were divided between the parties, one-fourth to the husband, and three-fourths to the alleged heirs. At the time this suit was brought, the proceeds of an insurance policy issued by the defendant in the present case had been paid to the husband. The present case now before this court was brought originally by the administrator of the estate of Lula Bell Webb McDaniel, the husband was vouched into court by the defendant insurance company and the heirs at law of Lula Bell Webb McDaniel, who filed the previous action, were made parties plaintiff by amendment. The general demurrer of the defendant to the petition as amended was overruled and the demurrers of the plaintiff were sustained to a plea of res judicata filed by the defendant claiming that the previous case was res judicata as to the relief sought in the present one. Only headnote 3 requires any elaboration.
“A former recovery, or the pendency of a former suit for the same cause of action, between the same parties, in the same or any other court that has jurisdiction, shall be a good cause of abatement; but if the first action is so defective that no recovery can possibly be had, the pendency of a former suit shall not abate the action.” Code § 3-607. “A judgment of a court of competent jurisdiction shall be conclusive between the same parties and their privies as to all matters put in issue, or which
It is apparent, from reading these two sections and from what is said in headnote 1 of the opinion, that the entire sets of facts which give rise to an enforceable claim under the respective sections are different, and that while the killing with malice aforethought is an element in both, the purpose of the killing is different in each, and under the rules above set forth it must be held that the causes of action given under the two sections are different and therefore the doctrine of res judicata is inapplicable. Since the former litigation would not necessarily adjudicate the question of whether the killing was done with malice aforethought by the defendant spouse, the doctrine of estoppel by judgment does not apply as “there is an estoppel by judgment only as to such matters within the scope of the previous pleadings as necessarily had to be adjudicated in order for the previous judgment to be rendered, or as to such matters, within the scope of those pleadings, as might or might not have been adjudicated, but which are shown by aliunde proof to have been actually litigated and determined.” Farmer v. Baird, 35 Ga. App. 208 (132 SE 260). There being no allegation in the plea that it was actually adjudicated and determined in the prior litigation that the spouse defendant did not kill the deceased with malice aforethought, no estoppel by judgment arises.
While we are cognizant of the rule that a judgment binds the parties not only by what was actually pleaded in the former suit but by what might have been there pleaded (Stanley v.
Judgment reversed.